Cases and authorities

CORPORATIONS – winding up – application for court ordered winding up – where companies in voluntary liquidation and voluntary administration – whether court-appointed liquidation promotes the interests of creditors and the interests of the administration. CORPORATIONS – winding up – application to validate appointment of voluntary liquidators and voluntary administrators under s 1322 of the Corporations Act 2001 (Cth) – where appointed by sole director of company not ordinarily resident in Australia – whether it is just and equitable that an order validating appointment be made – whether the power under s 1322(4) of the Corporations Act 2001 (Cth) should be exercised. CORPORATIONS – winding up – liquidators – powers – application for approval under s 477(2B) of the Corporations Act 2001 (Cth) to enter into relevant transaction nunc pro tunc – where transaction was negotiated prior to appointment – whether approval under s 477(2B) of the Corporations Act 2001 (Cth) will promote the interests of the external administration.

ADMINISTRATIVE LAW – Judicial review – Parens patriae – Orders sought in relation to proceedings on foot in the Children’s court and restoration supervision and parental responsibility of children – whether orders of prohibition and declaratory relief should be made – whether orders as to day to day care of child should be made – orders refused ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error on the face of the record – Children’s Court has no role in calling or testing evidence – Briginshaw v Briginshaw [1938] HCA 34 ADMINISTRATIVE LAW – Judicial review – Grounds of review – Jurisdictional error ADMINISTRATIVE LAW – Judicial review – Grounds of review – Denial of procedural fairness FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Children and Young Persons (Care and Protection) Act 1998 (NSW) , Div. 2 Pt 2 – Order requiring not the production of documents but their creation

CRIMINAL LAW – Jury – Discharge of jury – Evidence of jurors being approached outside court – Interests of justice warranting discharge of jury

PROCEDURE – Contempt – proof beyond reasonable doubt – burden of proof rests upon the party alleging contempt of court – criminal standard of proof for civil contempt – contempt must be wilful and not merely casual, accidental or unintentional

CONTRACTS – formation – novation – requirements for effective novation of contract by substitution of party – whether option to purchase land novated in favour of substituted grantee.

COMMERCIAL ARBITRATION – Role of court – Commercial Arbitration Act 2010 (NSW) – judge of the Supreme Court dismissed summons seeking declarations that mandate of arbitrator had not been terminated – whether summons sought an “interim measure” under s 17J or was a request for a decision under s 14(2) COMMERCIAL ARBITRATION – Role of court – Commercial Arbitration Act 2010 (NSW) – applicant sought to appeal from decision of judge of the Supreme Court made under s 14(2) – whether appeal to the Court of Appeal precluded by s 14(3)

CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – application for temporary stay of proceedings on the indictment pending outcome of application for leave to appeal against refusal to grant permanent stay pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether applicant had arguable case that double jeopardy principles would be breached – temporary stay granted

ASSOCIATIONS AND CLUBS – incorporated associations – other matters – church – admitted irregularities over a period of years in relation to conduct of annual general meetings and election of management committee – whether just and equitable for Court to declare current committee to have been validly elected notwithstanding irregularities on condition that new elections be held under supervision of an independent accountant after independent audit of financial records – Corporations Act 2001 (Cth), s 1322(4)(a)

CRIMINAL LAW – Admissibility of evidence – No point of principle

PROCEDURE – Vexatious litigant – leave to appeal under Vexatious Proceedings Act 2008 – deregistration by Medical Tribunal – NSW Civil and Administrative Tribunal – professional competence – professional misconduct – unfitness to practice – leave to commence proceedings in NCAT dismissed

BAIL – Application by accused for release pending re-trial – Applicant charged doing an act or acts in preparation for, or planning, a terrorist act or acts – Where jury could not reach a unanimous verdict in first trial – Exceptional circumstances test – Application refused

PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – where State ordered to produce documents to plaintiff despite claim for privilege – documents not produced pending appeal to Court of Appeal – where plaintiff seeks orders vacating hearing date pending determination of the appeal – whether application to vacate should be granted – whether partial adjournment preferable PROCEDURE – civil procedure – where s 67 notice issued by State – whether hearing should be vacated until status of witness availability established

BANKRUPTCY – definition of property – divisible property – when property vests in Official Trustee – Trustee obtains/gains power to adopt proceedings – defendant lacks standing to commence proceedings – summons dismissed – specified gross sum order for costs – plaintiff to pay defendant’s costs

CRIMINAL LAW – conviction appeal – sixteen counts alleging sexual misconduct against an underage complainant – six alleged incidents between 1986 and 1989 – jury trial – not guilty verdicts returned on eleven matters and guilty verdicts on five matters – applicant contends verdicts inconsistent – evidence principally that of applicant and complainant – pretext phone call – whether verdicts capable of standing together – verdicts not inconsistent – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – appeal against conviction – accessorial liability – Crimes Act 1900 (NSW) s 346 – where appellant convicted of accessory before the fact to murder – where appellant not present at murder scene – where appellant tried based on encouragement and assistance – where appellant sent threatening text messages to deceased – where evidence that appellant intended to encourage principal offender to cause really serious bodily injury to deceased – where appellant messaged principal offender “If you see [deceased] jump on his head”, “jus chop index n look” – where appellant’s defence was that deceased’s death was the result of principal offender’s spontaneous acts – where no alternate case relying on either joint criminal enterprise or extended joint criminal enterprise relied upon by the Crown – where trial judge used terms “enterprise” and “design” in context of summarising defence counsel’s closing address – whether trial judge erred in directing jury it was not necessary to prove actual encouragement of the principal offender – whether recklessness suffices – whether assisting and encouraging is a continuous act that persists until the substantive offence is committed – whether trial judge conflated concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability WORDS AND PHRASES – “linked in purpose” – “render more likely”

CRIME – appeal – failure to assess remorse adequately – non-acceptance of oral evidence without explanation – unfair approach – but no lesser sentence warranted

SENTENCING — Crown appeal against inadequacy of sentence – offences related to manufacture of methylamphetamine – firearms offences – assessment of objective seriousness of offences not disputed – inadequacy of indicative sentences imposed – effect of distinct criminality in drug supply and precursor offences on notional accumulation of sentences – comparison of indicative sentences relevant to assessment of whether aggregate sentences are proportionate to totality of criminality – purposes of sentencing in drug manufacturing offences – s 33 Crimes (Sentencing Procedure) Act 1999 (NSW) – taking account of offences listed on Form 1 document in sentencing – effect of delay on Court’s discretion to intervene

CIVIL PROCEDURE – case management - no issue of principle

COSTS - general rule - costs follow the event

CRIME – PRACTICE AND PROCEDURE – Notice of Motion seeking adjournment and leave to withdraw –where retainer has been terminated – where leave to withdraw was not pressed – adjournment to permit application for a temporary stay in accordance with Dietrich – where application for a temporary stay is unsuccessful, providing enough time for the Accused to prepare himself for the trial - disagreement as to length of adjournment – interests of justice – no point of general principal.

MORTGAGES AND SECURITIES - mortgages - duties, rights and remedies of mortgagee - possession – summary judgment – where no defence shown – principle in Collier v Morlend Finance – where whole of loan used to pay out prior mortgagee

COSTS – Whether order for costs should be made in respect of preparation of affidavit, correspondence and attendance at directions hearing.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative advantages of adoption vis-à-vis long term foster care – held, benefits of adoption outweigh benefits of preserving opportunity for future restoration – held, adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – where plan provides inadequate opportunities for child to know and develop relationship with birth father, including in event of his incarceration – held, plan not proper in the circumstances. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carer with whom children have an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote children’s best interests and is clearly preferable to any other order that could be made with respect to care of children – held, in children’s best interests to make consent dispense order so as to permit adoption orders to be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive family’s’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former hyphenated surname as two additional middle names is in child’s interests as means of preserving the child’s identity.

CRIMINAL LAW – sentencing – manslaughter – excessive self-defence – substantial impairment – brutal and premeditated attack by offender on her ex-husband – intention to inflict grievous bodily harm formed after attack commenced – subjective belief actions necessary to protect children – objectively unreasonable and disproportionate response – chronic mental health issues arising from early child sexual assault – where matters taken into account in reducing homicide from murder to manslaughter – aggravating features – offence committed in presence of young child – offence in the victim’s home – impact on family members – devastating impact – where mother kills children’s father – children sad lonely and confused – early offer to plead guilty – good prospects of rehabilitation – special circumstances – objectives of sentencing – relevance where offence “exquisitely idiosyncratic”

CRIMINAL LAW – particular offences – offences and other matters relating to terrorism – conspiracy to do act(s) in preparation for terrorist act(s) contrary to Criminal Code (Cth), ss 11.5, 101.6 – co-offenders married under Islamic rites – precise nature of intended terrorist act unclear – where offenders motivated to commit jihadist act for furtherance of Islam by violence – sentence following guilty verdicts – objective seriousness of conspiracy – general deterrence in light of prevalence of terrorist offending for furtherance of Islam by jihad – whether offenders have resiled from extremist Islamic beliefs – prospects of rehabilitation – sentences of imprisonment for fixed terms

COSTS —Principles upon which successful defendant may be denied costs – litigation funder of representative proceedings agreeing to bear costs if awarded in favour of defendant

STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55 Entitlement to just compensation – s 59 legal costs reasonably incurred – construction of s 59(1)(a) – Civil Procedure Act 2005, s 56 overriding purpose of proceedings just, quick, cheap ADMINISTRATIVE LAW – putative jurisdictional error – misapprehension of fact – whether factual questions can rise to the level of jurisdictional error

CORPORATIONS — Winding up — Voidable transactions — Unreasonable director-related transactions — Payments to sole director and shareholder — Loans to director written off — Corporations Act 2001 s 588FDA(1)(c) — Whether transactions “reasonable” — Transactions avoided.

STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55 Entitlement to just compensation – s 59 legal costs reasonably incurred – construction of s 59(1)(a) – Civil Procedure Act 2005, s 56 overriding purpose of proceedings just, quick, cheap

ADMINISTRATIVE LAW – putative jurisdictional error – misapprehension of fact – whether factual questions can rise to the level of jurisdictional error

CRIMINAL LAW – application to set aside subpoena – legitimate forensic purpose – metaphors about fishing trips – Controlled Operation Authority – whether subpoena can compel production of application and material behind authority – where NSW police investigate Commonwealth offence – where accused contends operation is unlawful – whether terms of subpoena oppressive

FAMILY LAW AND CHILD WELFARE – adoption – where two siblings have been separated and each established a stable relationship with proposed adoptive parents – whether consent of birth parents should be dispensed with pursuant to s 67 of the Adoption Act 2000 (NSW). FAMILY LAW AND CHILD WELFARE – adoption – extent of contact with birth mother and between siblings – where adoption order is in the children’s best interests – where adoption is preferable to other courses – whether an adoption order should be made.

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – requirement that Adjudicator assess the value of construction works in accordance with terms of “do and charge” contract – requirement that Adjudicator assess the reasonableness of builder’s margin – failure of Adjudicator to address requirements amounts to jurisdictional error.

EVIDENCE — onus of proof when a declaration is sought in relation to a negative fact — plaintiffs seek declaration that defendant solicitor did not send costs agreements DECLARATIONS — onus of proof when a declaration is sought in relation to a negative fact — plaintiffs seek declaration that defendant solicitor did not send costs agreements

Associations and Clubs – Jurisdiction of courts – Political parties – Dispute concerning interpretation of party constitution – whether justiciable – where political party registered, and recognised, by legislation – claim for declaration on construction of constitution justiciable

CORPORATIONS – examinations relating to insolvency – whether time for application to set aside examination summons should be extended – whether solicitors should be restrained from acting for liquidator.

CIVIL PROCEDURE – cross-vesting – transfer to other Supreme Court – relevant factors – interests of justice – consent judgment filed

CORPORATIONS – Winding up – Application to validate application for winding up under s 1322 of the Corporations Act 2001 (Cth) – where resolution to apply to be wound up passed by only one director – where resolutions of the company must be passed by two directors – where company has only one director – whether it is just and equitable to validate the application – whether the power under s 1322(4)(a) of the Corporations Act should be exercised.

CORPORATIONS – Dissolution – Reinstatement – Whether order should be made for reinstatement of company in liquidation.

ADMINISTRATIVE LAW – judicial review – decision of Harness Racing New South Wales – procedural fairness – manifest unreasonableness – whether imposition of certain licence conditions ultra vires – error established

CIVIL PROCEDURE – interim freezing orders – no question principle

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – where alternatives include restoration to birth parents, or parental responsibility order to carer – where child has established secure bond of attachment with adoptive applicant – where birth parents now have parenting capacity – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative risks of severing bond of attachment with carer and adoption – held, risks of severing bond outweigh those of adoption – held, subject to appropriate arrangements for birth parent contact, adoption would promote child’s best interests and is clearly preferable to any other order that could be made with respect to care of child. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – importance of birth family contact in mitigating risks of identity issues potentially associated with adoption – where plan provides inadequate opportunities for child to know and develop relationship with birth parents – held, plan not proper in the circumstances. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicant is approved carer with whom child has an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote child’s best interests and is clearly preferable to any other order that could be made with respect to care of child – held, in child’s best interests to make consent dispense order so as to permit adoption order to be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parent’s surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surname as a middle name is in child’s interests as means of preserving the child’s identity

CIVIL PROCEDURE – application by plaintiff for stay of proceedings for defamation shortly before date fixed for hearing – where criminal proceedings recently commenced against plaintiff based on same allegations as those raised in truth defences in defamation action – consideration of the guidelines stated in McMahon v Gould in light of subsequent decision of High Court in Reid v Howard – whether puisne judge bound by McMahon guidelines – consideration of delay, cost and impact of proceedings particularly on individual defendant – whether stay necessary for the protection of the privilege against self-incrimination in the face of powerful competing considerations

ADMINISTRATIVE LAW – judicial review of decision by NCAT confirming refusal to grant a "working with children check clearance" – where person seeking clearance had been tried for sexual offences against a child and found not guilty of all offences – finding by NCAT that the child’s allegations were proved on the balance of probabilities – whether decision entailed legal error – application of so-called Briginshaw standard – alleged failure to afford procedural fairness – alleged failure to consider the plaintiff’s sworn evidence – whether reasons revealed prejudgment – whether the finding was unreasonable – adequacy of reasons

CIVIL PROCEDURE – pleadings – application to file and serve a second further amended statement of claim – where hearing date has been allocated for some time – where application is sought very late – where some amendments raise new issues – whether leave should be granted to file and serve second further amended statement of claim.

HIGH RISK TERRORISM OFFENDER – preliminary hearing – application for Interim Detention Order (IDO) and mandatory examinations – alternative application for Interim Supervision Order (ISO) - Sovereign Citizen Movement – discussion of statutory preconditions for making an order of any kind – discussion of whether IDO or ISO should be imposed

CORPORATIONS – request under ss 70-45 and 70-55 of the Insolvency Practice Schedule (Corporations) for provision of specified information and documents – whether orders should be made under s 70-90 or s 90-15 of the Insolvency Practice Schedule (Corporations) in respect of the information or documents sought.

CIVIL PROCEDURE — Originating process — Amendment — Where amendments and part of additional evidence to be led was late and would delay trial — Where no adequate explanation of delay in making amendments or serving substantial exhibit to affidavit.

CONTEMPT – breach of interlocutory injunction in proceedings for defamation – whether contumelious – consideration of appropriate penalty

CIVIL - FORENSIC PATIENTS – Mental Health (Forensic Provisions) Act 1900 - application for an extension order – interim proceedings – question of whether qualified professionals should be appointed to examine defendant – question of whether an interim extension order should be imposed - Court satisfied to high degree of probability at interim stage that evidence if proved establishes the existence of unacceptable risk - risk cannot be adequately managed by less restrictive means at present time